Allen v. Department of Employment and Training

• Decision Date: 16 October 1992
• Docket Number: No. 91-260,91-260
• Citation: 618 A.2d 1317,159 Vt. 286
• Parties: , 60 Fair Empl.Prac.Cas. (BNA) 917, 80 Ed. Law Rep. 166 Jacqueline C. ALLEN v. DEPARTMENT OF EMPLOYMENT AND TRAINING.
• Court: Vermont Supreme Court

Page 1317

618 A.2d 1317

159 Vt. 286, 60 Fair Empl.Prac.Cas. (BNA) 917,

80 Ed. Law Rep. 166

Jacqueline C. ALLEN v. DEPARTMENT OF EMPLOYMENT AND TRAINING.

No. 91-260.

Supreme Court of Vermont.

Oct. 16, 1992.

Jean Anne Kiewel of Hertz and Wesley, Brattleboro, for plaintiff-appellant.

J. Eric Anderson of Cantini, Anderson & Oakman, Manchester Center, for defendant-appellee Vermont Academy.

Brooke Pearson, Montpelier, for defendant-appellee Dept. of Employment & Training.

Before ALLEN, C.J., GIBSON, DOOLEY and MORSE, JJ., and PECK, J. (Ret.), Specially Assigned.

MORSE, Justice.

The Employment Security Board denied plaintiff unemployment benefits because, before quitting her job, she did not give notice to her employer's business manager or someone in similar authority that she was being sexually harassed by her supervisor. Plaintiff appealed. We reverse and remand.

Plaintiff worked at Vermont Academy as a secretary for the housekeeping and maintenance departments. From December 1989 to April 1990, plaintiff alleged, and the Board expressly found, that one of plaintiff's two supervisors, the head of maintenance, made sexual advances toward her on at least three occasions. The first incident occurred in December 1989, when the supervisor grabbed plaintiff and kissed her. Plaintiff informed no one of the incident. Several days later the supervisor apologized and stated that it would not happen again. In January 1990, the supervisor asked plaintiff for a New Year's kiss, and plaintiff objected. He later apologized and made another promise to stop the conduct. In April 1990, however, the supervisor for a third time insisted that she kiss him. Plaintiff refused, pushed the supervisor away, and left. Finally, in August 1990, the supervisor requested that plaintiff accompany him to the gym basement to take inventory. Although plaintiff agreed to perform the task, she refused to do so in the isolated basement. No incidents occurred during the inventory; however, plaintiff, claiming she feared further unwanted sexual advances, shortly thereafter quit her job.

Several days later plaintiff wrote a letter to the supervisor in which she demanded that the harassment stop and stated that she wanted to return to work. He allowed her to return, but within a short period of time the supervisor became "very friendly" again, although no unwanted sexual contact or comments occurred. Plaintiff, believing that the harassment would recommence, quit for good in October 1990.

Except for one occasion, plaintiff never personally complained, by formal grievance or otherwise, to anyone other than the offending supervisor. The Board found that plaintiff, after returning to work in September 1990, informed the head of housekeeping that the head of maintenance had attempted to kiss her, to which she objected. Vermont Academy's business manager, the offending supervisor's superior, had not been told by anyone of the offending behavior toward plaintiff.

The Academy did not submit in evidence a personnel policy or grievance procedure at the hearing. Instead, it presented the testimony of the head of housekeeping at the Academy. She stated that she had been aware of a posted personnel policy but she was unsure whether it outlined a grievance procedure in general or one specifically addressing complaints of sexual harassment. She believed that if a problem arose, the necessary procedure would be to file a complaint with the immediate supervisor. Plaintiff also testified that she had never received a copy of the policy, nor did she know that a policy existed.

The Board concluded that plaintiff had not met her burden in showing that she had good cause to quit which was attributable to her employer. Critical to its determination was the finding that the business manager had no knowledge of the harassment. Because the business manager, and therefore Vermont Academy as the employing unit, was without notice or opportunity to remedy the problem, the Board denied plaintiff benefits.

As the trier of fact, the Board's factual findings and conclusions will not be disturbed by this Court if they are supported by credible evidence. Favreau v. Department of Employment & Training, 156 Vt. 572, 577, 594 A.2d 440, 443 (1991). If the findings of fact do not support the Board's determination under the applicable law, that judgment will not be upheld on review. In this case, the Board's findings of fact do not support its determination that the plaintiff's reason for quitting was not "attributable to" the employer. We conclude that actual notice to a person superior to the offending supervisor was not required.

A person is disqualified from receiving unemployment benefits if she voluntarily terminates employment "without good cause attributable to [the] employing unit." 21 V.S.A. § 1344(a)(2)(A). This two-pronged standard requires a showing of a sufficient reason to justify the quit, Stryszko v. Department of Employment & Training, 144 Vt. 198, 199, 475 A.2d 230, 231 (1984), and that the reason be "attributable" to the employing unit. Vennell v. Department of Employment Security, 141 Vt. 282, 283, 449 A.2d 899, 900 (1982).

An employee who is harassed on the job by a coworker may have "good cause" to quit. Turco v. Department of Employment Security, 141 Vt. 135, 138, 446 A.2d 345, 347 (1982). Federal law prohibiting discrimination in the workplace, Title VII of the Civil Rights Act of 1964, defines conduct that constitutes sexual harassment. See 42 U.S.C.A. §§ 2000e-2000e-17. "Hostile-environment" sexual harassment occurs when a worker is subjected to unwelcome sexual advances, thereby creating an offensive working atmosphere. Meritor Savings Bank v. Vinson, 477 U.S. 57, 64-67, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986) ("hostile-environment" sexual harassment occurs when employee is subjected to "discriminatory intimidation, ridicule, and insult" due to her sex). Such harassment is illegal even though no tangible job benefit is implicated, such as a termination, demotion or loss of promotion in retaliation for refusing to submit to the unwelcome advances. Id. at 65, 106 S.Ct. at 2404.

The Board expressly found that the incidents of sexual harassment complained of actually occurred and that plaintiff "quit her job ... because she was afraid that her supervisor ... would resume his harassment of her." The Board, however, did not make a finding that the second quit due to fear of plaintiff's supervisor in October 1990 was reasonable in light of the fact that no incidents had occurred since April 1990.

In deciding the case, the Board focused primarily on the second prong of the test--that the good cause was "attributable" to the employer. This requires that the cause of termination not be the fault of the employee or attributable to the employee's own conduct. Vennell, 141 Vt. at 283, 449 A.2d at 900. Generally, notice to the employer is required when an employee leaves a job for unsatisfactory working conditions so that the employer has an opportunity to rectify the situation before becoming responsible for unemployment compensation payments. Rushlow v. Department of Employment & Training, 144 Vt. 328, 331, 476 A.2d 139, 141 (1984). In the context of sexual harassment, however, notice to the employer is problematic. Women, understandably, may not complain about sexual harassment in the workplace out of fear of not being believed, embarrassment about making it known, and fear of reprisals. Nevertheless, the sexual harassment victim is "precisely the type of claimant unemployment compensation benefits are designed to assist: a worker who is committed to working yet finds her present working conditions intolerable." Unemployment Compensation Benefits for the Victim of Work-Related Sexual Harassment, 3 Harv. Women's L.J. 173, 187, 195 (1980).

The standard of employer liability in sexual harassment cases under Title VII, and the question of what constitutes notice to the employer, is still a matter of debate. The United States Supreme Court has declined to set forth a definitive rule on the issue, stating only that:

Congress wanted courts to look to agency principles for guidance in this area. While such common-law principles may not be transferable in all their particulars ... [the] decision to define "employer" to include any "agent" of an employer ... surely evinces an intent to place some limits on the acts of employees for which employers ... are to be held responsible.... [A]bsence of notice to an employer does not necessarily insulate that employer from liability.

Meritor, 477 U.S. at 72, 106 S.Ct. at 2408.

Other courts, taking guidance from agency principles, have held that knowledge may be imputed to the employer in situations where "the harassment took place at the office, during working hours and was carried out by someone with the...